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Supreme Court ‘100 Miles’ Border Ruling

Call for Trespassing (Police Bodyca...
Call for Trespassing (Police Bodycam)

Claim

"The Supreme Court just ruled [in June 2022] that Border Patrol can enter any home without a warrant and assault you, within 100 miles of the border. And no, you have zero federal protections if they do so."

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On June 8 2022, a popular tweet claimed that the Supreme Court had recently established a zone within a hundred miles of the border in which border agencies agents could execute searches of homes with impunity:

A map (“Cities within the 100-mile Border Enforcement Zone”) was attached to the tweet, and its text read:

The Supreme Court just ruled that Border Patrol can enter any home without a warrant and assault you, within 100 miles of the border. And no, you have zero federal protections if they do so.

The area in yellow is affected.

In a reply tweet directly underneath the “100-mile Border Enforcement Zone” tweet, the user linked to a PDF document on SupremeCourt.gov. It was titled Egbert v. Boule, and it was decided on June 8 2022.

As for the map, it was not new in June 2022; reverse image search indicated it was first crawled in July 2020:

100 mile supreme court 4th amendment

The map appeared to originate with the Southern Border Communities Coalition (SBCC), and it appeared on two functionally identical pages on the site. Both were titled “What is the 100-mile Border Enforcement Zone?” and was first archived in August 2020.

Text on both pages called for border policy reform, and both began:

The U.S. Customs and Border Protection (CBP), which includes the Border Patrol, is the largest law enforcement agency in the country. Their jurisdiction they claim spans 100 miles into the interior of the United States from any land or maritime border. Two-thirds of the U.S. population lives within this 100-mile border enforcement zone, including cities like Washington D.C., San Francisco CA, Chicago IL, New Orleans LA, Boston MA, & more.

Because these are considered border cities, federal border and immigration agents assert the power to board public transportation or set up interior checkpoints and stop, interrogate and search children on their way to school, parents on their way to work, and families going to doctor’s appointments or the grocery store — all done without a warrant or reasonable suspicion.

SBCC’s “100-mile Border Enforcement Zone” page continued, accurately describing “extraordinary” powers granted to Border Patrol officers and citing the Fourth Amendment’s protections against unreasonable search and seizure:

How can CBP agents do this? Unlike other federal agencies, CBP officers are uniquely granted extraordinary and unprecedented powers. These extraordinary powers state that officers are able to racially profile, stop, frisk, detain, interrogate, and arrest anyone without a warrant or reasonable suspicion. The Fourth Amendment is intended to protect all people against unreasonable searches and seizures. Every other federal law enforcement agency, except CBP, requires either a warrant or “reasonable grounds” for an officer to act without a warrant.

Border regions are often treated as zones of exception for human rights and civil rights, laying the foundation for abuse not just along our nation’s borders but across the country. That should never be the case. In these zones, border authorities assert excessive power, beyond the power of other law enforcement agencies, which leads to harassment, abuse, racial profiling and intimidation of border residents and travelers. In February 2020, Trump announced CBP employees would be granted immunity from Freedom of Information Act (FOIA) requests, and a few days later he announced he would be sending BORTAC units, the elite tactical units of Border Patrol, across the United States to major cities like New York, Chicago, and most likely many other major cities, to assist in door-to-door ICE raids and terrorizing communities of color. Most recently, BORTAC units & CBP resources were being used across the country to surveil & quell Black Lives Matter protests. Almost all of those major cities reside within the 100 mile border enforcement zone where border patrol operates with impunity. If human rights are to mean something, they must be fully protected in border communities, without exception.

The results have been deadly.

We must end the decades of enforcement-only policies that have erased our rights and have resulted in death & damage across our border communities. It is time to reimagine what border communities should look like, and what border governance could look like.

The 100-mile Border Enforcement Zone was not new on June 8 2022, nor was it established by the Supreme Court at that point. A June 8 2022 New York Times article summarized the ruling in question, in Egbert v. Boule:

The owner of an inn on the Canadian border who said he had been assaulted by a Border Patrol agent may not sue the agent for violating the Constitution by using excessive force, the Supreme Court ruled on Wednesday [June 8 2022].

The decision, by a 6-to-3 vote along ideological lines, stopped just short of overruling a 1971 precedent, Bivens v. Six Unknown Named Agents, that allowed federal courts, rather than Congress, to authorize at least some kinds of lawsuits seeking money from federal officials accused of violating constitutional rights.

But the basic message of [June 8 2022]’s decision, Egbert v. Boule, No. 21-147, was that only Congress can authorize such suits.

The case was brought by Robert Boule, the owner of a bed-and-breakfast in Blaine, Wash., called the Smuggler’s Inn. Mr. Boule said he had served as a confidential informant for the federal government, helping agents find and apprehend people crossing the border illegally.

A June 8 2022 article on legal site SCOTUSblog, “Court constricts, even if it does not quite eliminate, damages actions under Bivens,” analyzed the ruling in Egbert v. Boule, and its implications. SCOTUSblog observed that the Supreme Court rejected every claim under the 1980 ruling Bivens v. Six Unknown Agents, but pointed to elements of the ruling that might hinder future action:

Rejecting Fourth Amendment excessive-force and First Amendment retaliation damages claims against a U.S. Border Patrol agent by a U.S. citizen for an incident on his property near the U.S.-Canada border, the Supreme Court in Egbert v. Boule narrowed, but did not eliminate, private civil damages actions for constitutional violations by federal officials under Bivens v. Six Unknown Named Agents. Justice Clarence Thomas wrote for a five-justice majority; Justice Neil Gorsuch concurred in the judgment; Justice Sonia Sotomayor concurred in the judgment in part and dissented in part for Justices Stephen Breyer and Elena Kagan … The majority’s conclusion is unsurprising, given that the court has rejected every Bivens claim since 1980. But the opinion makes several ground-breaking and unexpected moves that may render future damages actions near-impossible.

At the end of the analysis, the site referenced Justice Sonia Sotomayor’s partial dissenting opinion in the ruling:

Sotomayor aims at three points from the majority opinion. One is its hyperbol[ic]” invocation of national security as a “talisman” to eliminate any claims against border-patrol officials, regardless of their conduct and where it occurs. A second is the majority’s insistence that a claim involves a new context when it involves line officers of a different federal agency; that means every claim involves a new context, since the agency for which the defendants in Bivens worked, the Federal Bureau of Narcotics, no longer exists. The third is the majority recognizing internal agency disciplinary proceedings as an alternative remedial scheme, where sanctions on the officer provide no relief or remedy to the injured plaintiff.

The dissent ends by suggesting the majority’s new approach disregards precedent recognizing the crucial role that damages suits play in deterring constitutional misconduct by federal officials. It thereby “closes the door” to suits by many who will “suffer serious constitutional violations at the hands of federal agents.”

A legal perspective on BloombergLaw.com was published on June 8 2022, “Supreme Court Again Raises Barrier to Sue Law Enforcement”:

The US Supreme Court further weakened a judge-made doctrine meant to hold federal law enforcement and other officials accountable for violating constitutional rights.

In a 6-3 decision on Wednesday [June 8 2022], the justices stopped short of overturning the 50-year-old rule stemming from its decision in Bivens v. Six Unknown Fed. Narcotics Agents. That ruling inferred the ability to sue federal officials for alleged constitutional violations.

But the conservative-majority court has now again reaffirmed its previous characterization of Bivens actions as outdated and its reluctance to extend them to new contexts.

The justices have “declined 11 times to imply a similar cause of action for other alleged constitutional violations,” Justice Clarence Thomas wrote for the court.

The court’s “cases have made clear that, in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts,” Thomas said.

Although Bivens still stands, it isn’t clear what, if any, cases will survive the court’s reasoning in Wednesday [June 8 2022]’s case, Egbert v. Boule.

A viral tweet claimed that the “Supreme Court just ruled that Border Patrol can enter any home without a warrant and assault you, within 100 miles of the border,” “[and] no, you have zero federal protections if they do so.” The tweet featured a map, suggesting that the map was perhaps established in the ruling. In actuality, the map was published in 2020 by the San Diego-based Southern Border Communities Coalition (SBCC), in an effort to raise awareness about increasing authority conferred to border agencies such as U.S. Customs and Border Protection (CBP). SBCC’s site had two pages focused on the 100-mile zone on the map, and warned of the ongoing erosion of rights with respect to border enforcement. The June 8 2022 ruling appeared similar to the issues raised for years by SBCC, but the ruling did not establish a 100-mile border zone where Fourth Amendment protections were newly suspended.